WASHINGTON – The Supreme Court declined Mondayto hear an appeal that could have set a new standard for how far employers must go to accommodate the religious beliefs of their workers, but two of the court’s conservative justices questioned the decision in a blistering dissent.
Jason Small was an electrician for Memphis Light, Gas and Water for more than a decade. His troubles began after an injury in 2013 required him to transfer jobs. Memphis Light offered him a position as a service dispatcher, but Small, a Jehovah’s Witness, worried the job would conflict with his desire to attend services on Wednesday evenings and Sundays and take part in community work on Saturdays.
Small sued in 2017, alleging religious discrimination. Both a federal district court and the Ohio-based U.S. Court of Appeals for the 6th Circuit found that he lacked enough evidence for most of his claims. But the court acknowledged the suit raised a fundamental question that has played into similar lawsuits since the late 1970s: When companies must make religious accommodations and when they may decline to do so.
The answer could affect corporate dress codes, such as for head scarves, turbans and beards, as well as schedules that permit employees to worship.
The case cameto the court at a time when the 6-3 conservative majority has looked kindly on claims involving religious freedom. On Monday, the justices offered no explanation for their decision not to hear the dispute. But Associate Justices Neil Gorsuch and Samuel Alito said it is time to revisit the standard used to decide such cases.
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Federal law requires companies to make accommodations for their workers’ religious beliefs as long as it doesn’t present an “undue hardship.” But in a 1977 decision, the Supreme Court defined “undue hardship” as anything having more than a “de minimis,” or trivial cost. That means employers can avoid making accommodations in many situations.
Gorsuch, in a dissent that was joined by Alito, asserted Monday that those circumstances allow “subpar employees” to receive more favorable treatment than highly performing workers if the latter group seeks only to attend church.
“There is no barrier to our review and no one else to blame,” Gorsuch wrote. “The only mistake here is of the court’s own making – and it is past time for the court to correct it,” Gorsuch wrote.
Several conservative Supreme Court justices havecalled on their colleagues to revisit the issue.
“We should reconsider” the standard, Alito wrote last year in opinion that was joined by Associate Justice Clarence Thomas and Gorsuch.
